In re Christopher K.

• Decision Date: 17 April 2007
• Docket Number: No. 2005–532.,2005–532.
• Citation: 923 A.2d 187,155 N.H. 219
• Court: New Hampshire Supreme Court
• Parties: In re CHRISTOPHER K.

155 N.H. 219

923 A.2d 187

In re CHRISTOPHER K.

No. 2005–532.

Supreme Court of New Hampshire.

Argued: Oct. 11, 2006.

Opinion Issued: April 17, 2007.

Rehearing Denied May 30, 2006.

Bailinson, Capuchino & O'Leary, of Manchester (Linda Capuchino on the brief and orally), for the petitioner.

Disabilities Rights Center, Inc., of Concord (Michael Skibbie on the brief and orally), for the respondent.

Kelly A. Ayotte, attorney general (Anthony I. Blenkinsop, assistant attorney general, on the brief, and K. Allen Brooks, assistant attorney general, orally), for the State.

HICKS, J.

The respondent, Christopher K., appeals an order of the Hillsborough County Probate Court (Cloutier, J.), renewing his order for involuntary admission to a receiving facility for the purposes of allowing him to remain on conditional discharge (renewal of conditional discharge) for a period of three years. See RSA 135–C:45, III (2005). We affirm.

The record supports the following facts. On May 7, 2002, following a hearing in the Merrimack County Probate Court, the respondent was involuntarily admitted to New Hampshire Hospital "for a period not to exceed 3 years with a conditional discharge as soon as appropriate." At some point, the respondent was conditionally discharged. According to the court-appointed psychiatrist in this proceeding, New Hampshire Hospital diagnosed the respondent at the time of his conditional discharge as having "Schizophrenia

, in remission; Anxiety Disorder NOS; Depressive Disorder NOS; Polysubstance Abuse ; and Antisocial personality traits." In May 2003, the respondent's conditional discharge was revoked because of his noncompliance with taking medication, threatening and/or assaulting behavior toward the staff of the Mental Health Center, and drug use to a degree that exacerbated his mental illness. Thereafter, the respondent was again conditionally discharged. On April 18, 2005, the petitioner, Richard Herron of the Mental Health Center of Greater Manchester, filed a petition to renew that conditional discharge. The court renewed the conditional discharge for a period of three years.

On appeal, the respondent argues that: (1) RSA 135–C:45, III violates the Due Process Clauses of the State and Federal Constitutions because it permits the involuntary admission of persons who are not currently dangerous; (2) the probate court was prohibited from granting a renewal of the respondent's conditional discharge because his previous involuntary admission order had expired prior to the hearing date; (3) the probate court erred in not excluding the testimony of Dr. Albert Drukteinis, the court-appointed psychiatrist, because the respondent did not have the effective assistance of counsel before and during the court-ordered psychiatric evaluation; (4) the petition was not specific enough to satisfy RSA 135–C:36, I(b) (2005) or due process because the numerous allegations dating back several years failed to give notice of what the petitioner intended to prove at the hearing on the merits; and (5) the evidence was insufficient to establish current dangerousness.

The respondent first contends that RSA 135–C:45, III violates the State and Federal Due Process Clauses because it allows the involuntary admission of persons who are not currently dangerous. See N.H. CONST. pt. I, art. 15 ; U.S. CONST. amends. V, XIV. He argues: (1) that the statutory standard of proof for renewing a conditional discharge is lower than that for obtaining an initial involuntary admission, and does not require a finding of current dangerousness; and (2) that a finding of current dangerousness is nevertheless constitutionally required.

Regarding the first point, the State disputes that the renewal of a conditional discharge requires a lower standard of proof than the initial involuntary admission. We believe, however, that the respondent's argument actually relates to the elements that must be established for renewal of a conditional discharge, rather than the degree of certainty in the result. Thus, while the State found the respondent's claim unclear, and focuses its own brief upon procedural due process, we interpret the respondent's claim as a substantive due process challenge. Accordingly, we first examine the respective requirements for an initial involuntary admission and a renewal of a conditional discharge.

The standard for involuntary admission is set forth in RSA 135–C:34 (2005):

The standard to be used by a court, physician, or psychiatrist in determining whether a person should be admitted to a receiving facility for treatment on an involuntary basis shall be whether the person is in such mental condition as a result of mental illness as to create a potentially serious likelihood of danger to himself or to others.

In addition, RSA 135–C:36, I(b) (2005) states that the petition for an involuntary admission shall include "[t]he specific acts or actions that the petitioner alleges satisfy RSA 135–C:34." Thus, although "commitment will not be ordered without proof of specific acts or actions demonstrating dangerousness," In re Fasi, a/k/a Cass, 132 N.H. 478, 484, 567 A.2d 178 (1989), "acts which demonstrate the mental condition ... are not the focus of the inquiry, but are merely evidence bearing on the issue of dangerousness." In re Field, 120 N.H. 206, 209, 412 A.2d 1032 (1980) (decided under prior law). "[T]he proceeding itself focuses on the present mental condition of the petitionee, and the propensity of the petitionee to commit future dangerous acts." In re Fasi, 132 N.H. at 483, 567 A.2d 178.

We have never imposed a particular time limit on the specific act requirement. Rather, we have said that "what is sufficiently recent will depend on the nature and circumstances of the act, the history of the person in question and the probative force of the other evidence adduced to prove dangerous propensity." Id. at 485, 567 A.2d 178 (quotations omitted).

Conditional discharge is provided for in RSA 135–C:45 (2005). Section II provides, in part:

Admission for purposes of conditional discharge shall be appropriate when the person has recovered from his mental illness to such an extent that he no longer requires inpatient treatment but a prescribed regimen of medical, psychiatric, or psychological care or treatment is necessary to prevent the recurrence of the circumstances which led to the person's dangerous condition.

We recently noted in In the Matter of B.T., 153 N.H. 255, 260, 891 A.2d 1193 (2006), that "[t]he plain language of this statute requires that an order of admission precede an allowance for conditional discharge. Thus, the statutory scheme creates a two-step process for an admission for the purposes of conditional discharge." For this reason, the standard provided in RSA 135–C:34 for an involuntary admission must also be met. Id.

A conditional discharge may be renewed pursuant to RSA 135–C:45, III. The court may "order involuntary admission to a receiving facility, or renew such an order, for the purpose of permitting the respondent to remain on conditional discharge if such treatment is necessary to prevent the recurrence of the circumstances which led to the person's dangerous condition." Id. We interpret "dangerous condition" to refer back to the language of RSA 135–C:34 : "such mental condition as a result of mental illness as to create a potentially serious likelihood of danger to himself or to others." RSA 135–C:34. Thus, we read RSA 135–C:45, III in light of RSA 135–C:34 to require proof that a respondent in a conditional discharge renewal proceeding is currently in such condition, as a result of mental illness, that "a prescribed regimen of medical, psychiatric, or psychological care or treatment is necessary to prevent," RSA 135–C:45, II, "a potentially serious likelihood of danger to himself or to others," RSA 135–C:34.

We have not yet had occasion to address whether the specific act requirement of RSA 135–C:36, I(b) applies to a petition to renew a conditional discharge under RSA 135–C:45, III. Regarding prior law, however, we noted in State v. Hudson, 119 N.H. 963, 409 A.2d 1349 (1979), that the specific act requirement of RSA 135–B:28 (repealed 1986) "relates to the original commitment only. Renewal orders need not be based on specific acts, because commitment may be based on a pattern of prior action and testimony relating to the question whether or not any cure for the defendant's condition has been effected." Id. at 967, 409 A.2d 1349.

We reach the same conclusion here. In authorizing involuntary admissions under RSA 135–C:45, I, the legislature clearly intended that the admitted person receive treatment for his mental illness. See, e.g., RSA 135–C:40, II (requiring court-appointed psychiatrist to determine whether involuntary admission is necessary for treatment of the person). In addition, the legislature contemplated that inpatient admission provide the degree of security needed for the person. See RSA 135–C:40, IV (2005). Thus, the legislature was presumably aware that there should be few specific dangerous acts committed during the time a person is involuntarily admitted to a receiving facility, due to restrictions on the person's activities, successful treatment, or both.

A person on conditional discharge should be even less likely to commit a dangerous act, as long as he complies with the prescribed treatment regimen. Under the standard of RSA 135–C:45, II, a person on conditional discharge should have "recovered from his mental illness to such an extent that he no longer requires inpatient treatment." In other words, because a person on conditional discharge no longer requires the secure custodial function of an inpatient facility, he is presumably less likely to commit a dangerous act while he is in compliance.

Given this statutory framework, we believe the legislature could not have intended to impose upon a petitioner seeking to renew the conditional discharge of another the task of alleging and proving an additional...